Contract
Exhibit
10.4
THIRD
AMENDMENT TO
AND
REINSTEMENT OF
This
Third Amendment to and Reinstatement of Agreement of Purchase and Sale (“Amendment”) is made effective
as of February __, 2008, by and between Realvest-Monroe CommerCenter
L.L.C., a Florida limited liability company (“Seller”), and Cornerstone Operating Partnership,
L.P., a Delaware limited partnership ("Purchaser").
RECITALS:
A. Purchaser
and Seller are parties to that certain Agreement of Purchase and Sale dated
November 29, 2007, as amended by that certain First Amendment to Agreement of
Purchase and Sale dated January 15, 2008, and that Second Amendment to Agreement
of Purchase and Sale dated January 28, 2008 (collectively, the "Agreement").
B. Seller
delivered to Purchaser notice of termination dated February 4, 2008 (the “Seller’s Notice of
Termination”).
C. Seller
wants to rescind Seller’s Notice of Termination and Seller and Purchaser want to
reinstate the Agreement subject to certain terms and conditions.
AGREEMENTS:
1. Termination. Seller’s
Notice of Termination is withdrawn and the Agreement is reinstated, in full
force and effect.
2. Inspection Period and Approval
Matters. The Inspection Period has ended and Approval Matters
in Second Amendment to Agreement of Purchase and Sale dated January 18, 2008,
have been approved by Purchaser.
3. Additional Xxxxxxx Money
Deposit. Purchaser shall deliver the Additional Xxxxxxx Money
Deposit in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) to
Escrow Agent within two (2) business days of full execution of this
Amendment.
4. Amendment to the Reciprocal Grant of
Easements. On or before Monday, March 3, 2008, Seller will
obtain and record a fully executed Amendment to the Reciprocal Grant of
Easements in the same form and content as is attached hereto as Exhibit
A.
5. Assumption of
Mortgage. The Agreement and Purchaser’s obligation to close
are contingent upon Transamerica Life Insurance Company (the “Mortgagee”) approving the
assumption by Purchaser of, and release of Seller from, the indebtedness secured
by the mortgage in favor of AmSouth Bank recorded in Official Records Book 4433,
Page 2, as modified in Official Records Book 5236, Page 252, and in Official
Records Book 5476, Page 444, and as assigned to Mortgagee by Assignment of
Mortgage in Official Records Book 5476, Page 438, all of Public Records of
Seminole County, Florida (the “Mortgage”). Purchaser
shall promptly provide the name of the guarantor, guarantor financial
information, a firm summary on Cornerstone, a list of other holdings in Florida,
and a general list of other holdings outside of Florida to the Mortgagee no
later than Monday, March 3, 2008. Purchaser shall pay all costs
associated with obtaining the assumption and release. If Purchaser
does not deliver notice to Seller on or before 5:00 p.m. Eastern Standard Time,
March 31, 2008, that Purchaser has (i) approved the form of the Mortgage, and
(ii) obtained the assumption and release on terms and conditions acceptable to
Purchaser in each case, in Purchaser’s sole and absolute discretion, or that
Purchaser has waived this condition, the Agreement shall terminate and the
Xxxxxxx Money shall be refunded to Purchaser.
6. Roof
Warranties. This Agreement and Purchaser’s obligation to close
are contingent upon Seller providing roof warranties to
Purchaser. If Purchaser does not deliver notice to Seller on or
before 5:00 p.m. Eastern Standard Time, March 31, 2008, that Purchaser has
received roof warranties that are acceptable to Purchaser, in Purchaser’s sole
and absolute discretion, or that Purchaser has waived this condition, the
Agreement shall terminate and the Xxxxxxx Money shall be refunded to
Purchaser.
7. Prepayment Penalty
Credit. Purchaser shall have a credit on the closing
statement in the amount of Eight Hundred Seventy-Five Thousand Dollars
($875,000.00) against the Purchase Price.
8. Closing Date. The
Closing Date will be on or before Tuesday, April 15, 2008. Purchaser
may obtain one (1) thirty (30) day extension of the Closing Date by delivering
written notice to Seller no later than Tuesday, April 1, 2008 and depositing
with Escrow Agent an additional Two Hundred Fifty Thousand Dollars ($250,000.00)
(“Second Additional Xxxxxxx
Money Deposit”) no later than Thursday, April 3,
2008. Thereafter, Purchaser may obtain one (1) additional (30) day
extension of the Closing Date by delivering written notice to Seller no later
than Thursday, May 1, 2008 and depositing with Escrow Agent an additional Two
Hundred Fifty Thousand Dollars ($250,000.00) (“Third Additional Xxxxxxx Money
Deposit”) no later than Monday, May 5, 2008. If Purchaser
fails to timely provide notice and make the required deposit, the right to
extend and any subsequent right to extend shall terminate.
9. Xxxxxxx Money
Deposit. As stated on paragraph 1.3(a) of the Agreement, the
Initial Money Deposit and the Additional Money Deposit are referred to as the
“Xxxxxxx Money Deposit”. If deposited, the Second Additional Xxxxxxx
Money Deposit, the Third Additional Xxxxxxx Money Deposit, and all interest
earned thereon shall become part of the Xxxxxxx Money Deposit and subject to all
of the terms of the Agreement, as amended by this Amendment, related to the
Xxxxxxx Money Deposit. The Xxxxxxx Money Deposit is nonrefundable
except as provided in paragraphs 5 and 6 of this Amendment or in the event of a
Seller default.
10. Defined Terms. All
capitalized terms in this Amendment shall have the same meaning as that set
forth in the Agreement unless defined otherwise herein.
11. Counterparts. This Amendment
may be executed in counterparts each of which shall be deemed a fully executed
original.
12. Ratification. Except
as expressly set forth in this Amendment, the Agreement remains unmodified and
in full force and effect. Should there be any conflict between the terms of this
Amendment and the terms of the Agreement, the terms of this Amendment will
control.
Balance
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Signatures
on next page.
IN
WITNESS WHEREOF, the parties hereto have executed this Third Amendment on the
day and year first above written.
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SELLER:
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Realvest–Monroe CommerCenter,
L.L.C., a Florida limited liability company
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By:
Realvest Development, LLC, a Florida limited liability company, as its
Manager
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By: Realvest
Holdings, LLC, a Florida limited liability company, as its
manager
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By:
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/s/ Xxxxxx X. Xxxxxxxxxx | |
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Xxxxxx
X. Xxxxxxxxxx, its managing member
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PURCHASER:
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Cornerstone Operating
Partnership, L.P., a
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Delaware
limited partnership
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By:
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a
Maryland corporation, its general partner
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By:
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/s/ Authorized Signatory | |
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Name:
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Title:
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